It's Time to Modernize the Office Of
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McCabe 1 Madison McCabe Professor James A. Thurber The Bryce Harlow Workshop on Ethics and Lobbying Spring 2021 It’s Time to Modernize the Office of Government Ethics The aftermath of the Watergate scandal1 gave rise to a significant era of government ethics reform. Driven by pressure from the media and public concern over governmental abuses of power, policymakers began introducing legislation aimed at cultivating a more transparent and accountable government. One of the notable reforms that emerged during this era is the Ethics in Government Act (EIGA).2 This act was signed into law on October 26, 1978 by former President Jimmy Carter with the goal of restoring public confidence in the federal government and serving as a model for state and local governments. 3 EIGA contains multiple components that target this goal. First, EIGA requires all Members of Congress, high-level executive branch officials, and senior members of the judicial branch to disclose their personal finances to the public. Prior to this mandate, there were no explicit regulations that held government employees accountable for using nonpublic information for private financial gain. The act goes even further to tackle this issue by setting limitations on outside earned income and employment for government officials. In his remarks on signing the bill into law, President Carter asserted that EIGA “broadens protection against abuses caused by postemployment conflicts of interest, so 1 Information on the Watergate scandal is available here. 2 United States, Congress. “Public Law 95-521: Ethics in Government Act of 1978.” 95th Cong., 2d sess., Government Printing Office, 1978, https://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg1824.pdf. 3 “Ethics in Government Act of 1978 Remarks on Signing S. 555 Into Law.” The American Presidency Project, 26 Oct. 1978, www.presidency.ucsb.edu/node/243561. McCabe 2 that people who have been employed in the Government cannot use this employment to go and enrich themselves by going into an area of private employment which would use their influence recently derived from government service.”4 In addition to imposing mandatory financial disclosures, EIGA established the Office of Government Ethics (OGE) to monitor and publicize ethics information regarding the executive branch. More specifically, this agency was designed “to bring some continuity and uniformity to ethics policies across the executive branch and to establish a system of financial disclosure for senior officials and officials in positions with an elevated risk for conflicts of interest.”5 The creation of OGE is arguably the most impactful provision within EIGA, which laid the groundwork for government ethics rules as we know them today. However, after operating for 43 years with virtually no structural changes, an upgrade is long overdue. In this paper, I will dive further into the functions of OGE, discuss its successes and failures, and explore opportunities for reform. Responsibilities and Contributions of the Office of Government Ethics Before the establishment of OGE, the power to oversee executive branch ethics was not concentrated in a specific agency, which made it difficult to prevent executive officials from engaging in conflicts of interest. This difficulty was brought to light by the General Accounting Office (GAO) in 1976.6 In a report to Congress, GAO stated that “a major and perhaps the most substantial contributing factor to all these problems was the decided lack of a central supervisory authority.” OGE was established in direct response to this concern regarding the absence of 4 “Ethics in Government Act of 1978 Remarks on Signing S. 555 Into Law.” The American Presidency Project, 26 Oct. 1978, www.presidency.ucsb.edu/node/243561. 5 “Our History.” USOGE | About, U.S. Office of Government Ethics, www.oge.gov/web/oge.nsf/about_our-history. 6 The General Accounting Office is now the Government Accountability Office. Information on GAO is available here. McCabe 3 centralized authority over executive ethics regulations.7 OGE is the first non-partisan federal agency whose sole mission is to interpret, refine, and implement an ethics program for the executive branch. As listed on the official OGE website, the agency’s key functions include: • Making and interpreting ethics laws and regulations • Supporting and training executive branch ethics officials • Administering the executive branch financial disclosure systems • Monitoring senior leaders’ compliance with ethics commitments • Ensuring agencies comply with ethics program requirements • Making ethics information available to the public8 Since 1978, OGE has made significant contributions to the executive ethics program. Within a year of its establishment, OGE began restoring public trust in the executive branch by requiring senior officials and nominees to disclose their financial holdings and undergo an ethics vetting process.9 By publicizing this information for the first time, OGE promoted a higher level of transparency between the executive branch and the American people. The next noteworthy development occurred under the leadership of President George H.W. Bush. In 1990, President Bush issued Executive Order 12731, “Principles of Ethical Conduct for Government Officers and Employees,” in which he tasked OGE with “[p]romulgating, in consultation with the 7 OGE was not entirely independent upon its creation; it was a part of the Office of Personnel Management (OPM) until 1988. Information about OPM is available here. 8 “What We Do.” USOGE | About, U.S. Office of Government Ethics, https://www.oge.gov/web/OGE.nsf/about_what-we-do. 9 “Our History.” USOGE | About, U.S. Office of Government Ethics, www.oge.gov/web/oge.nsf/about_our-history. McCabe 4 Attorney General and the Office of Personnel Management, regulations that establish a single, comprehensive, and clear set of executive-branch standards of conduct that shall be objective, reasonable, and enforceable.”10 In response, OGE published the Standards of Ethical Conduct for Employees of the Executive Branch.11 Even though OGE had previously issued many ethics rules and regulations, this was the first set of detailed, uniform standards applicable to all executive branch employees. The Standards of Ethical Conduct defines clear guidelines regarding the use of government positions, conflicting financial interests, impartiality, seeking other employment, outside activities, gifts from outside sources, and gifts between employees.12 From then on, OGE has worked diligently to continue implementing and improving ethics regulations for the executive branch. Unethical Conduct of the Trump Administration and the Need for Reform In theory, OGE’s executive branch ethics program is thorough and impactful, and for the majority of its history, it has performed fairly well in practice. With few exceptions, executive employees under both Democratic and Republican administrations have willingly disclosed their personal finances, divested from potential conflicts of interest, and abided by the rules set by OGE—until the presidency of Donald J. Trump. 13 Under the Trump Administration, the weaknesses of OGE became apparent and undeniable. It was evident that Trump would abandon the tradition of voluntary compliance with OGE from the day he was elected, if not sooner. In an interview with The New York Times, just a few days after winning the 2016 election, Trump said 10 United States, Executive Office of the President George H.W. Bush. “Executive Order 12731: Principles of Ethical Conduct for Government Officers and Employees.” 17 Oct. 1990. Available here. 11 United States, Office of Government Ethics. “Standards of Ethical Conduct for Employees of the Executive Branch.” 3 Feb. 1993. Available here. 12 A summary of the Standards of Ethical Conduct is available here. 13 Canter, Virginia, et al. Edited by Norman Eisen, The Brookings Institution, 2021, pp. 9, IF IT’S BROKE, FIX IT Restoring Federal Government Ethics and Rule of Law. McCabe 5 that “the law’s totally on my side, the president can’t have a conflict of interest.”14 While this is technically true,15 every other president since the 1970s has willingly divested from conflicting assets or set up a blind trust while in office.16 Trump’s disregard for executive ethics norms materialized throughout his time as president. For example, he used his presidency as a means to promote his business and grow his personal finances, all while refusing to disclose his tax returns. Trump maintained control of his assets by giving ownership of the companies within the Trump Organization to his oldest sons, Eric and Donald Jr.17 He profited from foreign and domestic governments, special interest groups, and other government officials who patronized his properties.18 Trump abused his power even further by appointing his daughter Ivanka and son-in-law Jared Kushner to positions in the White House, both of whom retained conflicting interests as well. Trump’s unethical conduct did not end there; not only did he reject ethics guidelines for the benefit of himself and his family, but he also extended this opportunity to his cabinet and administration. In a memo on strengthening OGE, Issue One explained that: [I]n building his cabinet and his administration, President Trump, a businessman, nominated a larger number of individuals from business, many of whom have complex holdings and more private-sector ties than previous administrations. OGE plays a critical role in working with nominees to arrive at agreements on how to deal with conflicts of interest through qualified blind trusts, divestments or other mechanisms to avoid conflicts. Reaching those agreements can be a long and arduous process, made more so by the number of business people entering the administration.19 14 Arnsdorf, Isaac. “Trump: 'The President Can't Have a Conflict of Interest'.” POLITICO, 22 Nov. 2016, www.politico.com/story/2016/11/trump-the-president-cant-have-a-conflict-of-interest-231760. 15 Congress exempted the president from the federal conflicts of interest statute under 18 U.S.C. § 208. 16 Canter, Virginia, et al. Edited by Norman Eisen, The Brookings Institution, 2021, pp.